Banning v. State Department of Fish & Wildlife

No. 43085-8-I (Wash. Ct. App. February 7, 2000)

ELR Digest

The court holds that property owners who built unpermitted structures on a county's right-of-way so that they could access adjacent tidelands did not hold property rights in the structures and could not seek compensation under the state constitution, the U.S. Constitution, or state limited access facilities law. The county demolished the structures when it reconstructed a road and a seawall on its right-of-waypursuant to a state environmental agency's designation of the tidelands as a habitat of special concern. The court first holds that the county did not violate the state constitution by taking for public use the property owners' right of direct and convenient access between their homes and their tidelands. Although the property owners lost the more convenient and more direct access to and from the tide-lands, there was no interference with the owner's rights in ingress and egress to and from the county's right-of-way. Therefore, the owners did not lose a property right that entitled them to compensation. The court next holds that the property owners are not entitled to compensation under the state's limited access facility law. The county's reconstruction of its right-of-way did not limit the property owners' access to the roadway. The court further holds that the state environmental agency's designation of the tidelands as saltwater habitats of special concern did not constitute a Fifth Amendment regulatory taking because the property owners were not required to sacrifice all beneficial economic use of their property as a whole.

The full text of this opinion is available from ELR (12 pp., ELR Order No. L-178).

Counsel for Appellants
James J. Mason
Eisenhower & Carlson
1201 Pacific Ave., Ste. 1200, Tacoma WA 98402
(253) 572-4500

Counsel for Respondent
Colleen G. Warren, Ass't Attorney General
Attorney General's Office
1125 Washington St. SE, Olympia WA 98504
(360) 753-6200

[30 ELR 20364]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]